Everything that happens to Donald Trump from now on is going to follow a script that mirrors the experience of ordinary criminals who are indicted and arraigned every day in Manhattan. Next Tuesday, sometime after 2:30 according to reports, he will be escorted into the Criminal Courts Building in lower Manhattan by his lawyers and a member of his Secret Service detail. He will be arrested. He will be booked. He will be fingerprinted. He will have his mugshot taken: front, left and right profiles. He will be taken into the courtroom of Judge Juan Merchan, the same judge who oversaw the Trump Organization tax fraud trial. He will be arraigned. The charges against him will be read. He will be asked, "what is your plea?" He will plead not guilty. Bail will be set, along with whatever restrictions the judge deems necessary to ensure his appearance at his trial sometime in the future. He will be released.
The only extraordinary thing about the entire matter will be the presence of at least one Secret Service agent, to which Trump is entitled as a former president. Everything else that will happen to Donald Trump next Tuesday will be pretty much the same thing that happens to any other defendant in New York City charged with a felony. Trump, accustomed to the gilded splendor of Mar-a-Lago and the wide, green fairways of his many golf courses, will walk through the plain-painted, linoleum-floored corridors of the Criminal Courts Building into an ordinary New York courtroom to be arraigned as an ordinary alleged criminal.
Donald Trump may be a former President of the United States, but he is being criminally charged as a private citizen.
Legal experts, most of them former prosecutors, earned their salaries and appearance fees last night as the coverage of the Trump indictment ground on into the wee hours of the morning. Rachel Maddow, making a special appearance on MSNBC, opened her show by saying that what we may have not anticipated about the Trump indictment is how boring it's going to be. After a few minutes of listening to her first guest, Andrew Weissman, former assistant U.S. Attorney and member of Robert Mueller's team that investigated Russia's involvement with the Trump campaign in 2016, Maddow changed her tune a bit. But her initial instincts weren't far off the mark. Indictments of criminal defendants at the Criminal Courts Building in Manhattan happen multiple times every day.
Weissman made it a point to explain how long the whole process of charging Trump and bringing him to trial will take. The indictment and trial of the Trump Organization took 16 months, including the guilty plea of Trump Organization CFO Allen Weisselberg. Maddow's guest emphasized several times that lengthy investigations leading to indictments, pre-trial maneuvering, and criminal trials often take a long time. It's part of the American judicial system, Weissman said, to ensure that defendants get a fair trial before a jury of their peers. In that way, too, the matter of Trump's indictment on felony charges surrounding the payment of hush money to Stormy Daniels is completely ordinary.
Everything else that will happen to Donald Trump next Tuesday will be pretty much the same thing that happens to any other defendant in New York City charged with a felony.
CNN came out with a story early in the evening that the Trump indictment includes "more than 30 counts related to business fraud." That number became 34 counts overnight as reporters worked the phones trying to learn the details of what Trump will be charged with, to little or no avail. So legal eagles were left to speculate about what the charges might entail. By late last night, former U.S. Attorney Joyce Vance was on Substack adding her expertise to the cogitating. She pointed out that there will likely be 11 separate charges for each of the checks Trump wrote to Michael Cohen to reimburse him for the $130,000 he raised from a second mortgage to pay off Stormy Daniels way back in October of 2016. There was also speculation by Friday morning that the charges might involve the payoff to former Playboy Playmate Karen McDougal to buy her silence about her 10-month affair with Trump in 2006 and 2007.
In 2016, Michael Cohen secretly taped a telephone conversation with Trump when they discussed the details of the National Enquirer paying McDougal $150,000 for the rights to her story about the affair and then promptly killing the story so news about the affair wouldn't be publicized in the run-up to the 2016 presidential election. Trump can be heard on the tape asking if "one-fifty" would be needed to reimburse "our friend David," referring to David Pecker, CEO of American Media Inc., which owned the National Enquirer. Cohen testified before the New York grand jury twice, and part of his testimony may have included the reimbursement he made to Pecker for the "catch and kill" fee he paid to McDougal for the rights to her story about the affair with Trump, which included a non-disclosure agreement effectively silencing her.
The conversations Michael Cohen had with Trump about the two pay-offs, including the details of how Trump would reimburse him for the payments he made to both Stormy Daniels and American Media Inc to buy the silence of Karen McDougal, would amount to "overt acts" in a conspiracy to violate New York business accounting and fraud laws. So those acts might be part of the 34-count indictment, too.
For his part, Trump has claimed that Cohen "didn't do any work" for the payments he made to Michael Cohen in separate checks for $35,000. His statements about the matter in the press might also become an element in the charges against Trump, depending on how the payments were accounted for on tax returns. It is a crime to pay someone for work as an attorney, as Trump claimed the payments were, when in fact no work was done and the payments were for some other purpose.
Apparently, it is commonplace in Manhattan for businesspeople to commit fraud by making personal or business payments and then lying about the purpose for which the payments were made in official documents or tax returns.
Manhattan District Attorney Alvin Bragg has made over 100 indictments for business fraud similar to the one he brought against Trump since taking office on January 1, 2022, adding to the ordinariness of the indictment announced yesterday. Apparently, it is commonplace in Manhattan for businesspeople to commit fraud by making personal or business payments and then lying about the purpose for which the payments were made in official documents or tax returns.
At this point, there is a mystery about what the "up-charge" in the indictment might be. An "up-charge" is legal slang for the reason a misdemeanor crime is increased to a felony because of a twist in the law. Simply falsifying business records by lying about their purpose is a misdemeanor in New York. It becomes a felony if the purpose of the falsification was to cover up the commission of another crime. There has been speculation that the second crime Trump sought to cover up may have involved campaign financing or campaign fraud, in that the purpose of both the Stormy Daniels and Karen McDougal payments was to gain an advantage in Trump's political campaign for president. In that scenario, the payments would be seen as illegal contributions to Trump's campaign, which was one of the charges Michael Cohen pled guilty to in 2018. Cohen's payments amounted to an illegal contribution "for the principal purpose of influencing the election," according to the charges against Cohen. Of course, Cohen's conviction was at the federal level, while Trump is being charged by the state. Tying the two cases would be a rather novel legal gambit.
Underlying the 34 criminal counts in the Trump indictment is cheating in his campaign for the presidency in 2016 — belying a motivation that may be perhaps the only non-ordinary thing about the Trump indictment. With all of Trump's chants to "lock her up" during the campaign against Hillary Clinton, the FBI investigation of her emails did not produce even one charge against her for breaking the law. Yet at the same time, Trump was basking in the "lock her up" chants at his campaign rallies, he was committing multiple felonies to cover up not one but two sex scandals that if they had been revealed, might have tanked his campaign for president.
Alvin Bragg, or one of his deputies, could at some point down the road stand up in court in Manhattan during his opening statement and say that Donald Trump bought the presidency with the checks he wrote to silence two women with whom he had sex. Now that wouldn't be ordinary at all.
